Impunity of Military Peacekeepers: Will the UN Start Naming and Shaming Troop Contributing Countries?

Impunity of Military Peacekeepers: Will the UN Start Naming and Shaming Troop Contributing Countries?

Issue:

25

Volume:

19

By:

Rembert Boom

Date:

November 24, 2015

Introduction

The focus of this Insight is on the criminal accountability of members of the military component that may be part of United Nations (UN) peacekeeping operations (military members). Unfortunately, several member states that have contributed military members (Troop Contributing Countries or TCCs) have failed to hold their members accountable for alleged criminal misconduct such as rape.

To prevent impunity, the UN Secretary-General has proposed to name and shame these TCCs. However, uncertainty remains as to whether the proposal will be acceptable to all TCCs. Analysis of developments regarding the legal framework since the early 90s shows that, although a naming and shaming policy may be considered a compromise, TCCs tend to resist accountability measures.

The Legal Framework

Under the legal framework, the UN depends on TCCs to hold their military members accountable for any criminal misconduct. To allow a peacekeeping operation to function independently, without legal interference, both civilian and military peacekeepers receive immunity from the jurisdiction of the state in which the operation is situated (host state) in relation to acts in the performance of their official capacity.[1] Military members, including civilians that are subject to the military law of their TCC and assigned to the military component of the operation, also receive immunity from the host state’s criminal jurisdiction.[2]

Under status of forces agreements (SOFAs) that are in principle concluded ad hoc between the UN and host states, military members are subject to the “exclusive jurisdiction” of their TCCs for any criminal offences they may commit.[3] To prevent a “jurisdictional vacuum,” each TCC in turn agrees that it “shall exercise such jurisdiction” under a contributing memorandum of understanding that is presumably concluded ad hoc between the UN and each TCC for each operation.[4]

Naming and Shaming

Unfortunately, TCCs have failed in numerous instances to exercise their jurisdiction within a reasonable time, resulting in the impunity of military members or situations tantamount thereto and the denial of justice to victims.[5] At the same time, these TCCs have thus far largely escaped public scrutiny.

To compel all TCCs to expeditiously exercise their jurisdiction, the Secretary-General has proposed implementing a naming and shaming policy. Earlier this year he declared his intention to disclose in his future reports to the UN General Assembly “country-specific information on the number of credible allegations being investigated by Member States,” including “the year in which a case was reported” and the “specific name” of the TCC involved.[6]

However, before the Secretary-General proceeds, he is seeking the approval of the General Assembly’s Special Committee on Peacekeeping Operations (C-34).[7] The C-34—delegated with a wide responsibility for peacekeeping affairs and currently composed of more than 150 present and former TCCs—has thus far expressed no desire to subject its members to naming and shaming.

It has not embraced the Secretary-General’s proposal in its 2015 annual report.[8] It also rejected an earlier recommendation to establish a naming and shaming mechanism proposed in an acclaimed UN report by then Ambassador Zeid of Jordan (Zeid report) prepared in 2005 in response to mounting allegations of sexual abuse and exploitation by peacekeepers in virtually all UN operations since the early 90s.[9]

Nevertheless, the Secretary-General recently referred again to his proposal when he addressed the UN Security Council during a special session on sexual abuse and exploitation at the hands of peacekeepers in the Central African Republic.[10] He is, however, unlikely to implement a naming and shaming policy without the C-34’s support. The political and legal repercussions that followed the last time a Secretary-General acted against the C-34’s wishes on this subject continue to shape the applicable legal framework to this day.

The UNTAG SOFA

In 1989, after more than a decade of negotiations, the SOFA of the United Nations Assistance Group (UNTAG, 1989–90), established to facilitate the independence of Namibia, was concluded.[11] As per usual practice, each military member was subject to the exclusive criminal jurisdiction of his respective TCC.[12] However, a memorandum of understanding, annexed to the agreement to provide further clarification on its terms, stated that “[s]hould a Participating State fail within reasonable time to take steps to exercise the required jurisdiction in any particular case including arrest and detention when appropriate and should the accused remain in the Territory he shall become subject to local criminal jurisdiction.”[13]

This complementary mechanism ensured that military members suspected of having committed crimes outside the performance of their official functions could not remain indefinitely at large amongst the local population in the area of operations without having to fear prosecution by their respective TCCs or eventually a local criminal court. It presented a break from the unconditional exclusive criminal jurisdiction enjoyed by the TCCs in relation to their military members in all previous peacekeeping operations.[14]

TCCs did not appreciate the limited reading of their coveted exclusive criminal jurisdiction.[15] Although several member states contributed troops to UNTAG, they did not enter into contributing agreements with the UN that included the obligation to exercise jurisdiction in relation to criminal offences that may be committed by their military members.[16] Neither did TCCs of other peacekeeping operations for nearly two decades.[17] The obligation was reintroduced only after the aforementioned Zeid report observed in 2005 that TCCs often lacked “the will to court-martial alleged offenders.”[18]

Within three months of the conclusion of the UNTAG SOFA, the C-34—at the time composed of thirty-four TCCs—requested that the Secretary-General prepare a model SOFA.[19] The resulting document, known as the “Model SOFA,” embodied the “established” “customary principles and practices” of previous operations.[20] It did not include complementary local criminal jurisdiction.

UN SOFA practice is still largely based on the Model SOFA. However, as a result of a rather liberal interpretation of the Model, host states are, contrary to previously established practice, generally no longer offered assurances by the UN that TCCs will be under the obligation to exercise their jurisdiction in relation to any criminal offences that may be committed by their military members.[21]

Conclusion

The Secretary-General’s proposal to ensure criminal accountability of military members through a naming and shaming policy, under which unconditional exclusive criminal jurisdiction of TCCs is preserved, seems relatively accommodating to TCCs, especially compared to a measure such as complementary local criminal jurisdiction as provided for under the UNTAG SOFA. However, in view of the C-34’s past resistance to accountability measures, it cannot be readily assumed that it will consider a naming and shaming policy an acceptable compromise.

About the Author: Rembert Boom is a legal consultant and a former legal and policy officer at the Ministry of Foreign Affairs of The Netherlands.

[4] U.N. Secretary-General, Summary Study of the Experience Derived from the Establishment and Operation of the Force, ¶ 136, U.N. Doc. A/3943 (Oct. 9, 1958), available at http://www.un.org/ga/search/view_doc.asp?symbol=A/3943 [hereinafter Summary Study]; Revised Model Contributing MoU, supra note 2, art. 7 quinquiens. Completed in 2006, the Model was first made available in 2009. See U.N. Working Group on Contingent-Owned Equipment, Letter dated Feb. 22, 2008 from the Chairman of the 2008 Working Group on Contingent-Owned Equipment to the Chairman of the Fifth Committee, U.N. Doc. A/C.5/63/18 (Jan. 29, 2009). No Contributing MoUs based on the Model have yet been published in the United Nations Treaty Series.

[14] Exchange of Letters Constituting an Agreement Concerning the Status of the United Nations Emergency Force in Egypt art. 11, Feb. 8, 1957, 260 U.N.T.S. 61; Agreement Between the United Nations and the Republic of the Congo Relating to the Legal Status, Facilities, Privileges and Immunities of the United Nations Organization in the Congo art. 9, Nov. 27, 1961, 414 U.N.T.S. 229; Exchange of Letters Constituting an Agreement Between the United Nations and the Government of Cyprus Concerning the Status of the United Nations Peace-Keeping Force in Cyprus art. 11, Mar. 31, 1964, 492 U.N.T.S. 57; Exchange of Letters Constituting an Agreement Between the United Nations and Pakistan Concerning the United Nations Security Force in West Guinea (West Irian), Apr. 18, 2015, 503 U.N.T.S. 25 (referring to General Directive Concerning the United Nations Security Force in West New Guinea (West Irian) art. 7 (e), 503 U.N.T.S. 32).

[17] The Model Contributing agreement, prepared by the Secretary-General to complement the Model SOFA, was never used in practice. See U.N. Secretary-General, Model Agreement Between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-keeping Operations, ¶ 25, U.N. Doc. A/46/185 (May 23, 1991) [hereinafter Model Contributing Agreement]. Its successor, prepared by the Secretary-General under the guidance of the Committee, was used in practice but did not include the TCC’s obligation to exercise jurisdiction. See U.N. Secretary-General, Administrative and Budgetary Aspects of the Financing of the United Nations Peacekeeping Operations, U.N. Doc. A/51/967 (Aug. 27, 1997).

[21] For a singular exception, see Agreement Between the United Nations and the Government of the United Republic of Tanzania Concerning the Activities of the United Nations Organization Mission in the Democratic Republic of the Congo in Tanzania art. 2 (d), May 19, 2003, 2215 U.N.T.S. 3. Model SOFA, supra note 3, ¶ 48 is intended to be included in the SOFAs governing the relationship between the UN and the host states, either directly or by way of an explanatory memorandum of understanding. The accompanying footnote refers to a memorandum of understanding as annexed to the UNTAG SOFA and not, as has been argued, including by the UN-Secretariat, to contributing memorandums of understanding governing the relationship between the UN and the TCCs. See U.N. Secretary-General, Revised Draft Model Memorandum of Understanding Between the United Nations and [participating State] contributing resources to [the United Nations Peacekeeping Operation], at 11–12, U.N. Doc. A/61/494 (Oct. 3, 2006).

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